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IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
G.K. Ilanthiraiyan, J.
Pandiyarajan and Ors. – Appellants
Versus
State and Ors. – Respondents
Crl. O.P. (MD) Nos. 21065 of 2018, 323 of 2019, Crl. O.P. (MD) Nos. 14347, 14565 of 2019, Crl. O.P. (MD) Nos. 13798 and 16058 of 2019
Decided On : 29-11-2019
Tamil Nadu Gaming Act - Sections 4(1)(d), 8 and 9 - City Police Act, 1988 - Sections 45 and 46 - Bombay prevention of Gambling Act 1887 - Constitution of India, 1950 - Article 21 - Challenging First Information Report and Summary – Quash of proceedings - Gambling with money by playing cards - that as per the first information report, the complainant and the investigating officer are one and the same and as such, the entire proceeding is vitiated and the very first information report itself cannot be sustained as against the petitioners. The registration of FIR itself is against the fundamental and constitutional right guaranteed under Article 21 of the Constitution of India, since the investigation officer, after receipt of secret information started investigation and also conducted search and seizure without even registering the FIR - That even assuming that the alleged allegations are presumed to be true, the respondent ought to have registered the cases under the provisions of City Police Act and not under the Tamil Nadu Gaming Act - That Section 6 of Tamil Nadu Gaming Act raises presumption against accused presumption of innocence is a human right and statutory presumption can be raised against the accused only if foundational facts have been established by the prosecution. Therefore, the initial burden always exists upon the prosecution and only thereafter presumption would be raised against the accused – Held, Instrument of gaming must be kept or used in the premises in question - Keeping from using of the instruments aforesaid must be for profit or gain of person owning occupying, using or keeping such premises - Such profit or gain may be by way of charge for use of premises or instruments or in any other manner whatsoever - In case on hand, except the recovery of playing cards and money from the persons playing cards, no other incriminating materials were seized from place of occurrence to show that accused persons have any direct or indirect connection with a common gaming house was run by accused for profit or gain. Playing cards with stakes is not an offence under the Tamil Nadu Gaming Act and whereas playing cards in any gaming house is only an offence under Act - As already pointed out that Clubs in which the accused persons were played cards are not gaming under the purview of common gaming house. Point No. 6 is decided accordingly - Except two cases, all the cases are in FIR stage - In the cases, where, charge sheet were filed, the respective officers, who registered the case and the respective investigating officers are one and the same - In decision in of Punjab Criminal Appeal Supreme Court of India has categorically held that foundation of fair trial postulates that informant and the investigator must not be the same person - Entire proceedings are and it cannot be sustainable - Any possibility of bias or pre-determent conclusion has to be excluded – Therefore investigating officer and the informant cannot be same person accordingly - Petitions are allowed
ORDER :
G.K. Ilanthiraiyan, J.
All these quash petitions have been filed challenging the FIR and Summary Trial Cases arising out of the offences under Sections 4(1)(d), 8 and 9 of Tamil Nadu Gaming Act and Sections 45 and 46 of the City Police Act, 1988.
1. Crux of the Complaints:
Crl O.P. (MD) No. 21065 of 2018
On 03.11.2018, when the respondent was in routine search operation upon secret information in Prince of Wales Recreation Club, they found that the accused persons were gambling with money by playing cards and hence, they registered a case in crime No. 504 of 2018 for the offences under Sections 8 and 9 of the Tamil Nadu Gaming Act, 1930.
Crl.O.P.(MD) No. 323 of 2019
On 02.11.2018, when the respondent was in routine search operation upon secret information in International Hotel, they found that the accused persons were gambling with money by playing cards and hence, they registered a case in crime No. 764 of 2018 for the offences under Section 9 of the Tamil Nadu Gaming Act, 1930.
Crl.O.P.(MD) No. 14347 of 2019
On 14.10.2018 in the usual raid, the respondents found that the accused persons were involved themselves in gambling with money by playing game of cards at Bhairava Recreation Club and hence, the respondents registered a case in crime No. 806 of 2018 for the offences under Sections 45 and 46 of the Tamil Nadu City Police Act, 1888.
Crl.O.P.(MD) No. 14565 of 2019
On 28.09.2018 in the usual raid, the respondents found that the accused persons were involved themselves in gambling with money by playing game of cards at Bhairava Recreation Club and hence, the respondent registered a case in crime No. 761 of 2018 for the offences under Sections 45 and 46 of the Tamil Nadu City Police Act, 1888.
Crl.O.P.(MD) Nos. 13798 and 16058 of 2019
On 04.11.2018, on receipt of secret information, the respondents along with their team mates surrounded the building, which consists of four rooms and where the Club viz., New Indian recreation Club is situated and found some persons were playing Rummy-13 cards with plastic token and Ulle Veliye. Thereafter, they were arrested and recovered a sum of Rs. 2,59,294/- and playing cards from the accused persons. Hence, a case has been registered in crime No. 423 of 2018 for the offences under Sections 4(1)(d), 8 and 9 of Tamil Nadu Gaming Act, 1930 and after due investigation, the respondent filed charge sheet before the concerned Judicial Magistrate, which was taken cognizance in S.T.C. No. 10 of 2019.
2. The grounds raised in Crl.O.P.(MD) Nos. 21065 of 2018 and 323 of 2019 are as follows :
(ii) that even assuming that the alleged allegations are presumed to be true, the respondent ought to have registered the cases under the provisions of City Police Act and not under the Tamil Nadu Gaming Act.
(iii) that Section 6 of Tamil Nadu Gaming Act raises presumption against the accused. The presumption of innocence is a human right and statutory presumption can be raised against the accused only if foundational facts have been established by the prosecution. Therefore, the initial burden always exists upon the prosecution and only thereafter, the presumption would be raised against the accused.
(iv) that as per Section 5(1) of the Tamil Nadu Gaming Act, it is mandatory that a written warrant containing reasons to believe that a place is used as common gaming house has to be issued either by a Judicial Magistrate or Police Officer not below the rank of Deputy Superinten
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